NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1355
ADOPTION OF VALETTA (and a companion case 1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a Juvenile Court judge found that the father
was unfit to parent the children, Valetta and Ryan, and that
each of their best interests would be served by the termination
of his parental rights, but ordered that the father be permitted
posttermination and postadoption visits with the children. The
father appeals from the decrees, arguing that the judge based
the finding of unfitness on exaggerations of the father's
criminal history, and his sobriety for almost two years before
trial precluded a finding that he would remain unfit for the
foreseeable future. The father also argues that the judge did
not consider the best interests of the children in ordering that
the father's visits occur at the same time as the mother's, and
1 Adoption of Ryan. The children's names are pseudonyms. should have ordered more than four annual postadoption visits
for the father. We affirm.
Background. For several years, the father struggled with
misuse of opioids. In about 2019, the father underwent
rehabilitation and began taking Vivitrol shots to curb his
cravings for opioids.
In 2019, the father and the mother began a relationship and
the mother became pregnant. Beginning when the mother was six
months pregnant, they lived together in the paternal
grandmother's home. The father knew that the mother had a
history of marijuana use, but testified at trial that he did not
know that during the pregnancy she tested positive for marijuana
and cocaine and missed prenatal medical visits.
Valetta was born in August 2020. Because she tested
positive for marijuana and cocaine at birth, a report alleging
neglect by the mother was filed with the Department of Children
and Families (DCF) pursuant to G. L. c. 119, § 51A (51A report).
When the father learned of the 51A report he became upset,
stating, "marijuana is legal," which the judge found minimized
the significance of Valetta's exposure to marijuana. The father
told a DCF emergency response worker that he did not use illegal
substances, had been sober from heroin for seventeen months, and
was taking Vivitrol shots. When Valetta was two days old, DCF
assumed emergency custody of her. In response to DCF's
2 involvement, the father became combative and irate, saying he
would not allow "fucking DCF" into his home and that he would
"fight anyone" who tried to take Valetta from him. Five
security guards, with assistance from several police officers,
escorted him from the hospital and told him not to return.
DCF initiated this care and protection proceeding
concerning Valetta. At the seventy-two hour hearing, the father
testified that the mother had moved out of his home; he would
have support in caring for Valetta from the paternal
grandmother, his cousin, and his aunt (great aunt); and he was
taking Vivitrol shots. On August 10, 2020, the judge granted
temporary custody of Valetta to the father with conditions
including that the mother was not to have unsupervised contact
with Valetta or to reside with the father, and the father was to
refrain from the use of alcohol and substances. The judge
appointed a court investigator with whom the father was not
forthright about his criminal or substance abuse history; he
denied the presence of any domestic violence in his relationship
with the mother, which the judge did not credit.
After the conditional custody order was in place, the
father stopped taking Vivitrol because he believed he no longer
needed it. Unbeknownst to DCF or the court, the mother was
living with the father and Valetta; at trial the father admitted
that fact, and the judge credited his testimony. By January
3 2021, the mother was again pregnant by the father. During the
pregnancy, the mother tested positive for Suboxone, morphine,
fentanyl, and marijuana.
Ryan was born in September 2021. In the hospital, the
mother tested positive for fentanyl; when informed of the
result, the father became upset and said that only a "low level"
was detected. Ryan tested negative for all substances, but due
to concerns of the mother's substance use, a 51A report alleging
neglect by the mother was filed. DCF assumed emergency custody
of him, placed him in a foster home, and initiated a care and
protection proceeding.
On November 1, 2021, the judge granted temporary custody of
Ryan to the father on the same conditions as his custody of
Valetta. Interviewed by the court investigator, the father said
he and the mother were in a relationship and that she visited
him and the children for two hours on Monday through Thursday,
supervised by the great aunt. In fact, the mother was living
with the father and the children. The father told the court
investigator that he did not want custody of the children by
himself, but rather wanted the family to be reunited, including
the mother. At trial, the father testified that it was "unfair"
that the mother was "kicked out" of his home.
In November 2021, the father relapsed on opioids. At trial
he testified that he relapsed because it was difficult caring
4 for both children. He did not seek support from the paternal
grandmother, but instead allowed the mother to live in the home
to care for the children. He also hid his relapse from his
family and DCF.
Shortly before 10 P.M. on December 2, 2021, at his home,
the father found the mother unresponsive in the bathtub with her
head submerged in water. The mother was taken by ambulance to a
hospital and diagnosed with loss of consciousness and
respiratory distress. 2 A 51A report was filed alleging the
mother's neglect of the children, who were then sixteen months
and three months old. The 51A report also alleged that the
father was currently under the influence of fentanyl and that
there was domestic violence between him and the mother.
The mother told the ongoing social worker that she had no
memory of what happened in the bathtub. She disclosed that, two
days before, she and the father had a "heated argument" about
her access to the children, and in the past the father had put
his "hands on" her and the violence was ongoing. The judge
credited the mother's statements to the social worker.
Interviewed on December 6 by the social worker, the father
lied about whether the children were present in his home when
2 Testing at the hospital revealed benzodiazepines and fentanyl in the mother's system, but both of those substances were administered during treatment.
5 the mother passed out in the bathtub. He claimed that the
mother had asked to take a bath at his home, and he brought the
children to the great aunt's home before the mother arrived; he
was not concerned that he had disrupted the children's routine
so that the mother could take a bath. At trial, the father
admitted that the children were at his home when the mother
passed out in the bathtub; at one point, he testified that
Valetta "was in the tub" with the mother, then changed his
testimony to say that he was bringing Valetta to the tub when he
found the mother unconscious.
After the ongoing social worker told him in the December 6
interview that the 51A report alleged that he was under the
influence of fentanyl, the father denied that he used drugs,
which the judge did not credit. The father said that he had
been submitting urine screens to his probation officer and had
never tested positive. He denied falsifying tests. Asked to
undergo a hair follicle test, the father said he would speak to
his attorney.
Shortly after that interview, the father telephoned the
ongoing social worker and admitted that three weeks previously
he had relapsed on opioids. The father began inpatient
detoxification.
On December 7, 2021, DCF was granted temporary custody of
the children. That day, two 51A reports were filed alleging
6 neglect of the children by the father. One of them alleged that
the father had permitted the mother to live with the children in
violation of the conditional custody orders. The other 51A
report alleged that the father had falsified supervised urine
screens by using a "penis-like device" to dispense clean urine.
The court investigator learned that, during the three-week
period when the father later admitted he had relapsed, he had
submitted to a urine screen with his probation officer and no
substances were detected.
After his discharge from detoxification, the father entered
an intensive outpatient program and resumed Vivitrol injections.
In May 2022, shortly after completing the intensive outpatient
program, the father again stopped taking Vivitrol and then
relapsed using fentanyl. He overdosed and was found lying face
down on the front steps of his home by police, who revived him
with Narcan. He did not disclose his relapse to DCF or seek
supports. The judge found that when the father was describing
that relapse at trial, he was "laughing"; he testified, "I just
went off edge." The father underwent a seven-day rehabilitation
program and then entered an intensive outpatient program and
resumed Vivitrol. On June 10, 2022, the father stipulated that
he was then unfit to parent the children.
Around November 2022, the father again stopped taking
Vivitrol. He did not inform DCF that he had done so; in fact,
7 in early 2023, he repeatedly told the social worker that
Vivitrol was helpful to him, which the judge found was
dishonest. At trial, the father testified that he believed he
did not have to inform DCF that he had stopped Vivitrol because
"it was my choice."
Between their removal in December 2021 and trial in
February 2024, the children were separated, each in several
foster placements. On February 10, 2023, DCF's goals for both
children were changed to adoption, with the plan for them to be
adopted together. As of trial, DCF had received inquiries from
the great aunt and from a maternal second cousin, but no
preadoptive family had been determined.
Discussion. 1. Termination of parental rights. "To
terminate parental rights to a child and to dispense with
parental consent to adoption, a judge must find by clear and
convincing evidence, based on subsidiary findings proved by at
least a fair preponderance of evidence, that the parent is unfit
to care for the child and that termination is in the child's
best interests" (citations omitted). Adoption of Arianne, 104
Mass. App. Ct. 716, 720 (2024). "The judge must also find that
the current parental unfitness is not a temporary condition"
(quotation and citations omitted). Id. "We give substantial
deference to the trial judge's decision to terminate parental
rights 'and reverse only where the findings of fact are clearly
8 erroneous or where there is a clear error of law or abuse of
discretion.'" Id., quoting Adoption of Valentina, 97 Mass. App.
Ct. 130, 137 (2020). "An abuse of discretion exists where the
decision amounts to a clear error of judgment that falls outside
the range of reasonable alternatives" (quotations and citations
omitted). Adoption of Xarissa, 99 Mass. App. Ct. 610, 616
(2021).
a. Father's unfitness. The father argues that the judge
erred in concluding that DCF proved that he was currently unfit
to parent the children. The father contends that the judge
impermissibly reached that conclusion by exaggerating his
criminal history, and no nexus was proven between his past
combativeness and his parenting ability.
As mentioned, the judge considered evidence of the father's
belligerence at the hospital after Valetta was born. In
addition, the judge noted that based on a fight in 2008, the
father was convicted of assault and battery, and charges of
assault by means of a dangerous weapon (a firearm) and assault
and battery by means of a dangerous weapon (a shod foot) were
continued without a finding.
As to the father's more recent criminal history, we are not
persuaded by the father's claim that the judge "exaggerated" it
by relying on police reports pertaining to unproven criminal
charges. Beginning in January 2021, DCF's action plan tasks for
9 the father included that he refrain from illegal activity and
notify DCF of any police involvement within twenty-four hours.
The judge found that the father failed to inform DCF of the
following: a June 2021 police investigation regarding an
allegation that he had hit someone with a baseball bat; a May
2022 overdose where police revived him with Narcan; a July 2023
arrest for assault by means of a dangerous weapon after he
allegedly threatened to stab a man with a knife; and January
2024 charges of motor vehicle offenses.
The father's "unwillingness to adhere to DCF's service
plan," including the requirement that he promptly report any
police involvement, was relevant to the judge's determination of
his unfitness. Adoption of Luc, 484 Mass. 139, 147 (2020).
This is so even if the police involvement did not result in a
criminal conviction. See Care & Protection of Frank, 409 Mass.
492, 497 (1991) (police observations of mother's criminal
conduct were "relevant to the issue of parental fitness,"
although they did not give rise to convictions).
Nor are we persuaded by the father's argument that DCF did
not present evidence permitting the judge to find that the
father's history of combative and aggressive behavior impacted
his fitness as a parent. After the children were removed, DCF
asked the father to complete an intimate partner violence
program due to the reported history of domestic violence between
10 him and the mother. The judge found that the father lacked
insight into why DCF required him to complete that program. The
father was terminated from the program, was not honest with DCF
about why he was terminated, and never re-engaged in such a
program.
The judge concluded that the "[f]ather's inability to fully
acknowledge his history of violence, including his inability to
be forthright with collaterals, the court investigator, and
[DCF], renders him incapable of protecting the children from
future abuse or witnessing abuse." We discern no error of law
or abuse of discretion in that conclusion. See Adoption of
Lisette, 93 Mass. App. Ct. 284, 294 n.15 (2018) ("A parent's
willingness to ignore or minimize abusive behavior can be an
indicator of unfitness, regardless of whether the child is at
risk of abuse or witnessing abuse").
b. Likelihood of prolonged unfitness. Based on factors
including the father's substance use disorder, "a condition
which is reasonably likely to continue for a prolonged
indeterminate period," G. L. c. 210, § 3 (c) (xii), the judge
concluded that "there is no reasonable expectation that Father
will be able to provide proper care or custody of the children,
within a reasonable time, and the children require and deserve
permanence." The father contends that DCF did not prove that
his parental unfitness was likely to continue, and the judge did
11 not take into account evidence that the father had maintained
his sobriety for about twenty-two months before trial. Based on
the evidence of the father's unwillingness to engage in
substance abuse treatment, the judge did not abuse his
discretion in concluding that there was no reasonable
expectation that the father would be fit to parent the children
within a reasonable time.
"Treatment 'does not always work the first or even the
second time, [and] relapse should not be cause for giving up on'
an individual experiencing substance use disorder" (citation
omitted). Adoption of Luc, 484 Mass. at 147. "[P]arental
rights should not be terminated only because the parent has a
substance use disorder." Id. Even so, "the parent's
willingness to engage in treatment is an important consideration
in an unfitness determination where the substance dependence
inhibits the parent's ability to provide minimally acceptable
care of the child[ren]." Id. "Because childhood is fleeting, a
parent's unfitness is not temporary if it is reasonably likely
to continue for a prolonged or indeterminate period." Adoption
of Ilona, 459 Mass. 53, 60 (2011).
Among the father's action plan tasks were to engage in
substance abuse treatment, undergo frequent supervised urine
screens, and attend three to five twelve-step meetings weekly.
The judge found that the father did undergo substance use
12 treatment, and maintained sobriety for periods of time with the
help of Vivitrol, but then stopped Vivitrol and relapsed in
November 2021 and again in May 2022. The judge found that the
father failed to sufficiently verify his attendance at twelve-
step meetings. For six months before trial, the father was not
engaged in any substance abuse services. About six months
before trial, the father submitted a clean urine sample that was
not at the proper temperature; at trial, he had no explanation
for the discrepancy, and the judge found it "suggest[ed] he may
have tampered with the sample." The father never complied with
DCF's request to undergo hair follicle testing. As of trial, he
still was not taking Vivitrol; he testified that he stopped
taking it because he had a "sober plan" and a "routine." Asked
at trial to describe the impact of his substance use on the
children, the father instead described how not seeing the
children impacted his mother and his brother. Asked if he would
use drugs in the future, the father testified that he did not
know.
Based on that evidence of the father's lack of willingness
to continue to engage in treatment for his substance use
disorder, the judge did not commit clear error or an abuse of
discretion in concluding that the father's parental unfitness
was likely to continue. See Adoption of Luc, 484 Mass. at 147.
13 2. Visitation. The judge ordered that the father be
permitted visits with both children monthly posttermination and
four times annually postadoption, and that those visits take
place "at the same time as" the mother's visits, "for the
benefit of the children." The father contends that the judge
abused her discretion in ordering that the father's visits occur
at the same time as the mother's.
"A trial judge's decision whether to order visitation
between a child and a parent whose parental rights have been
terminated is reviewed for an abuse of discretion." Adoption of
Xarissa, 99 Mass. App. Ct. at 623. A postadoption contact order
may be warranted "where no preadoptive family has yet been
identified, and where a principal, if not the only, parent-child
relationship in the child's life remains with the biological
parent." Adoption of Edgar, 67 Mass. App. Ct. 368, 371 (2006),
quoting Adoption of Terrence, 57 Mass. App. Ct. 832, 839 (2003).
We discern no abuse of discretion in the judge's order that
the children's posttermination and postadoption visits occur
with the father and the mother at the same time. That order is
within "the range of reasonable alternatives," Adoption of
Xarissa, 99 Mass. App. Ct. at 616, because it seeks to minimize
the disruption to the children's lives as they "negotiate[]
. . . the tortuous path from one family to another," Adoption of
Vito, 431 Mass. 550, 565 (2000). If circumstances change and
14 simultaneous visits with both biological parents are no longer
in the best interests of the children, the children or their
custodian, whether DCF or an adoptive parent, may seek to modify
the order. See Adoption of Edgar, 67 Mass. App. Ct. at 369-370.
As for the father's argument that four postadoption visits
annually are not sufficient, we similarly find no abuse of
discretion.
Decrees affirmed.
By the Court (Grant, Brennan & Smyth, JJ. 3),
Clerk
Entered: November 3, 2025.
3 The panelists are listed in order of seniority.